Given that his first job out of Harvard Law School was as a member of the Watergate Special Prosecution Force, Henry Hecht knows more than most people about the investigation of a sitting president and how potential impeachment is supposed to work.
Hecht was one of about three dozen attorneys probing the crimes of President Richard Nixon before Nixon ultimately resigned on Aug. 9, 1974, rather than face almost-certain impeachment.
But Hecht, now a faculty member at Berkeley Law, doesn’t see impeachment in the near term for another embattled president, Donald Trump. The president is accused of conspiring with Russia during the 2016 elections, making and directing illegal payments to influence the 2016 election, obstruction of justice, undermining freedom of the press and multiple violations of the Emoluments Clause of the U.S. Constitution.
“The first question might not be whether he will be impeached, but whether an inquiry will be opened,” Hecht says. “There are a number of people in Congress, House Democrats, who have said we have to open an impeachment inquiry. There are others in Congress, including Democrats, who are not ready to take that step. As we sit here today, unless something changes, I don’t see that it’s going to happen.”
The House of Representatives buttressed that belief this week by killing a measure seeking to impeach Trump by a 332-95 vote. It was the first vote on impeachment since the release of former special counsel Robert Mueller’s 448-page report on Russian interference in the 2016 election.
Mueller spent just under two years leading an investigation of Trump, and he is scheduled to speak publicly with two different House committees next Wednesday. Might his testimony increase the likelihood of impeachment?
“I don’t think that anything is going to happen on July 24 when Mueller testifies that will change the picture,” he says, “particularly given that Mueller said in his first press conference on May 29 that “any testimony would not go beyond the report.”
A number of steps are required for presidential impeachment. First, the House of Representatives’ Judiciary Committee (or a special committee) must hold a hearing and vote by a simple majority to send Articles of Impeachment to the full House for a vote. Next, the House must approve by a simple majority the Articles of Impeachment. The impeachment proceedings then move to the Senate for a trial. Finally, if the Senate finds the president is guilty of the charges, the president is removed from office.
While Hecht doesn’t believe the House will move on impeachment now, he is all but certain the Republican-controlled Senate would not convict.
“No reasonable person could believe that the current Senate, led by Mitch McConnell, if it received Articles of Impeachment, would vote to impeach,” Hecht says. He also points out that “significant portions of the Mueller Report are still unknown, thanks to redaction. I don’t think any of us currently knows enough about what’s in the Mueller Report.”
Of course, Nixon ran for reelection in 1972 with Watergate making headlines, and 49 of the 50 states voted for him. The reasonable position then was that no impeachment would be forthcoming.
The differences between the Nixon and Trump scenarios turns on these three points. First, the revelation of a taping system in the White House led to the Supreme Court ruling in an 8-0 vote — then-Associate Chief Justice William Rehnquist recused himself — that the White House had to turn over 64 tapes, with Chief Justice Warren Burger writing the opinion. Second, John Dean, the former White House counsel to the president who was fired by Nixon, gave his full cooperation to congressional investigators and Watergate prosecutors. And, third, FBI associate director Mark Felt, who would become known as “Deep Throat,” was feeding information to the Washington Post.
“We don’t know enough about Trump’s possible collusion with Russia to interfere with the 2016 elections and engagement in a cover-up and obstruction of justice,” Hecht says. “We had John Dean as a source, and the tapes supported his memory to a remarkable degree. Compare that to now, with Paul Manafort, Michael Flynn, Rick Gates and Michael Cohen as potential witnesses. We just don’t know the quality of their information and cooperation.”
All four of those Trump associates have been either convicted in court or have pled guilty to conspiracy, perjury or making false statements. Manafort and Cohen are in prison, Gates and Flynn are currently awaiting sentencing.
“In Watergate, you also had to give a great deal of credit to the driving force of (Bob) Woodward and (Carl) Bernstein, as well as the Washington Post’s willingness to publish in the face of threats from the White House,” Hecht says. “I think there are a number of news outlets now that are aggressively pursuing these stories. But, as I said, they don’t seem to have the same sources of information.”
The man charged with getting the information during Watergate was Archibald Cox. The solicitor general under President John F. Kennedy had returned to teaching at Harvard Law School when Secretary of Defense Elliot Richardson, Nixon’s nominee for attorney general, called to ask if Cox would lead what would be called the Watergate Special Prosecution Force.
When Richardson called on May 16, 1973, Cox was at Berkeley Law delivering the last of the five-part Jefferson Memorial Lecture Series. On May 17, Cox started his first day on the job as special prosecutor. Hecht, fresh out of Harvard Law School, soon applied for a job.
“I received a phone call from his office asking if I could come in for an interview,” Hecht recalls. “I did so on Friday, June 15. I started work on Monday, June 18. I wasn’t actually yet a lawyer, having just graduated. I was very blessed to have this as my first job out of law school. I passed the bar and became an ‘official’ assistant special Watergate prosecutor in November.”
Hecht would go on to have a hand in the last of the Watergate jury trials, in 1975, and he wound up having the longest tenure of any attorney in the office.
“As special prosecutor, Cox had independence,” Hecht says. “Robert Mueller as special counsel had to answer to the attorney general. A significant difference is that our office did not need approval for each investigation under the applicable regulations.”
Cox was ultimately fired in what came to be known as the Saturday Night Massacre. On Oct. 20, 1973, Nixon ordered then-Attorney General Elliot Richardson to fire Cox. Richardson refused, instead resigning immediately. Nixon next ordered then-Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus refused, also resigning on the spot. Nixon then turned to then-Solicitor General Robert Bork. Bork considered resigning, too, but gave in to Nixon and fired Cox.
Furor ensued. Eleven days later, Leon Jaworski was appointed as Cox’s replacement. Ultimately, the Watergate Special Prosecution Force published its Final Report on Watergate that didn’t require approval of the attorney general.
When Mueller’s team compiled its report, the regulations said it had to first go to the attorney general. In the report, Mueller deferred pressing any charges, and Attorney General William Barr said there were no charges to be brought against Trump for conspiring with the Russians.
Barr went on to say the report cleared Trump. Only when the redacted version of the report was released did it become clear that Barr had dramatically misstated the report’s findings.
“Mueller’s report spells out overt acts that many have argued showed obstruction of justice,” Hecht says. “As I have said, as of today, it doesn’t appear that there will be an impeachment. In looking at the history of which I am aware, it’s a different era. But the story is an evolving one.”